Military Lawyers

Nonjudicial punishment under Article 15 of the Uniform Code of Military Justice gives commanders a tool to address minor misconduct without a court-martial. That efficiency comes with procedural rights for the service member, and one of the most important is the right to examine the evidence the commander intends to rely on. When a command denies that right, the consequences range from a weakened punishment that can be set aside on appeal to a complete loss of the evidentiary value of the proceeding. This article explains what the right covers and what happens when it is ignored.

The right to examine the evidence

Procedures for nonjudicial punishment are set out in Part V of the Manual for Courts-Martial. Among the rights afforded to a member who does not refuse NJP is the right to be informed of the evidence and to examine the documents or physical objects the commander intends to rely on in deciding whether to impose punishment and how much. Official service guidance reinforces this point, advising that the member may examine all evidence upon which the commander will rely. The member is not necessarily entitled to copies of every document, but the underlying material must be available for review.

This right exists so that the member can make informed decisions. A member generally has the right to decline NJP and demand trial by court-martial, to present matters in defense, extenuation, and mitigation, and to have witnesses appear. None of those choices can be made intelligently if the member cannot see what the commander is relying on. The right to review evidence is therefore tied directly to the fairness of the whole proceeding.

Why the timing matters

The review right attaches before the commander decides on punishment, not after. A member who is kept in the dark about the evidence may waive the right to demand court-martial or may accept the proceeding without understanding how weak or strong the case is. Because the entire NJP process depends on the member’s informed election, denying access to the evidence at the front end taints the decisions that follow.

Consequences within the command process

The first consequence is internal. NJP is not a criminal conviction, and the member who believes the punishment was unjust or disproportionate can appeal to the next superior authority. A denial of the right to review evidence is a strong basis for such an appeal, because it …

During the sentencing phase of a court-martial, counsel sometimes wants to tell the panel what counsel personally noticed about a witness, that the witness seemed nervous, evasive, defiant, or remorseless. The short answer is that an attorney’s own observations of a witness’s demeanor are not admissible evidence, in rebuttal or otherwise. Counsel may comment on demeanor through argument that draws on what the members themselves observed, but counsel cannot become a witness and inject personal observations into the record as proof.

The difference between evidence and argument

The military sentencing process under the Rules for Courts-Martial follows a defined order. Trial counsel presents matters such as service data, prior convictions, and evidence in aggravation; the defense presents matters in extenuation and mitigation; and then the parties may offer rebuttal of matters the other side introduced. Everything in this sequence is evidence, presented through sworn witnesses, documents, or recognized substitutes. Counsel’s closing argument is something different. It is advocacy about the evidence, not evidence itself. An attorney’s personal impression of how a witness behaved does not fit into either category as admissible proof.

Why counsel cannot testify to demeanor

An advocate is not a witness. The rules of professional responsibility, reflected in the lawyer-as-witness principle, bar an attorney from acting as both advocate and witness in the same proceeding except in narrow circumstances. Beyond the ethics rule, the rules of evidence require that testimony come from a witness with personal knowledge who is placed under oath and subjected to cross-examination. If counsel were allowed to assert personal observations of a witness’s demeanor, the opposing party could not cross-examine those assertions, and the attorney’s credibility would improperly become an issue. For these reasons, counsel’s demeanor observations are not admissible evidence.

Demeanor is for the trier of fact to assess

Demeanor occupies a special place in the law. The members who sit on the panel observe each witness directly, and assessing demeanor, the witness’s calmness or anxiety, hesitation, evasiveness, or candor, is a core function of the trier of fact. That is one reason the right to confront witnesses face to face matters so much. Because the panel sees the witness firsthand, it does not need, and the rules do not permit, an attorney to narrate or characterize that demeanor as evidence. The members draw their own conclusions from what they saw.

What counsel may permissibly do in argument

This does not mean …

Article 97 of the Uniform Code of Military Justice, found at 10 U.S.C. 897, punishes any person subject to the Code who, except as provided by law, apprehends, arrests, or confines any person. The article targets the abuse of the authority to restrain. A pointed application of this rule arises when a service member with restraint authority detains another person not for a lawful disciplinary or investigative purpose, but to pressure that person into providing information or a confession. Understanding how military courts approach this conduct requires separating the elements of Article 97 itself from the separate body of law that governs whether any resulting statement can be used in court.

The elements that make detainment unlawful

To convict under Article 97, the government must prove two core elements. First, that a certain person was apprehended, arrested, or confined by the accused. Second, that the accused made unlawful use of authority to apprehend, arrest, or confine that person. The restraint must have been against the will of the person restrained, and the prosecution must show that the accused did not have a reasonable belief that the restraint was lawful.

That last point is central to the coercion scenario. Apprehension, arrest, and confinement are lawful only when grounded in a legitimate basis recognized by the Code and the Manual for Courts-Martial, such as probable cause to believe an offense was committed or the need to ensure a member’s presence at proceedings. Detaining someone for the purpose of squeezing out information or a confession is not among the lawful grounds. When the real object of the restraint is to coerce a statement rather than to serve a recognized custodial purpose, the use of authority is unlawful and the conduct can fall squarely within Article 97.

A key feature of the article is that it reaches only those who hold and misuse official restraint authority. Article 97 prohibits improper acts by persons authorized under the Code to apprehend, arrest, or confine others. It does not apply to private acts of false imprisonment, nor to restraint imposed by someone who has no such authority. The article therefore polices the integrity of military authority itself. The wrong it addresses is the official who turns a lawful power into an instrument of pressure.

Coercion as the marker of unlawfulness

When detainment is used to extract information, the coercive purpose is what transforms an otherwise colorable restraint …

Urinalysis prosecutions for wrongful use of a controlled substance under Article 112a of the Uniform Code of Military Justice often rise or fall on documentation rather than on what was in the bottle. The chain of custody is the paper and procedural trail that proves a specimen tested in a laboratory is the same specimen collected from the accused, handled without tampering, and accurately attributed. When the defense disputes that chain, the military has a structured way of evaluating the challenge, and the outcome can determine whether the test result reaches the members at all.

What the chain of custody is supposed to prove

Department of Defense drug testing relies on the DD Form 2624, the Specimen Custody Document, to record every transfer of a specimen from the moment of collection through receipt at the testing laboratory. Each change of custody is supposed to be captured by the signatures of the person releasing the sample and the person receiving it, with the chain documented on the form. The purpose is continuity: an unbroken, signed record showing who controlled the specimen at every step. Because the consequences of a positive result are severe, the program is designed so that uninterrupted custody and complete paperwork accompany each sample.

How a dispute typically arises

A chain-of-custody dispute usually begins when the defense reviews the litigation package, which is the collection of laboratory and administrative records the government must produce to support the result. Common problems include missing or out-of-sequence signatures, gaps in time that no one accounts for, mislabeled bottles, errors in the social security number or other identifiers, broken or improperly applied seals, and discrepancies between the form and the laboratory’s internal records. Any of these can suggest that the specimen tested was not reliably the accused’s, or that it could have been altered or confused with another.

How the military evaluates the challenge

Military courts treat the chain of custody primarily as a question of authentication and reliability. The government must lay a foundation sufficient to show that the item is what it claims to be. The key distinction in practice is between flaws that affect admissibility and flaws that affect weight. Minor, well-explained gaps generally go to the weight the members give the evidence rather than barring it, while a serious, unexplained break can defeat the foundation entirely and keep the result out.

This is why the government cannot rely …

Article 78 of the Uniform Code of Military Justice punishes the accessory after the fact: a person who, knowing that another has committed an offense under the code, receives, comforts, or assists that offender in order to hinder or prevent the offender’s apprehension, trial, or punishment. A recurring question arises when the principal, the primary offender, resolves his own case through a plea agreement. Does that deal help or hurt the accessory? The answer is that a plea deal for the primary offender can affect the accessory’s prosecution in several practical ways, but it does not eliminate the charge, because the accessory’s guilt under Article 78 does not depend on the principal being convicted by the same means or at all.

The elements of Article 78 and the role of the underlying offense

To convict an accused as an accessory after the fact, the government must prove that an offense punishable under the code was committed by another person, that the accused knew that person had committed the offense, that the accused received, comforted, or assisted the offender, and that the accused did so for the purpose of hindering or preventing the offender’s apprehension, trial, or punishment. The first element requires proof that the underlying offense actually occurred and was committed by the principal. It does not require that the principal already stand convicted.

This distinction is the key to the whole question. The government must prove, at the accessory’s own trial, that the principal committed the underlying offense. How the principal’s case was resolved, whether by guilty plea, by contested trial, by acquittal, or not at all, is a separate matter from whether the government can prove the principal’s guilt at the accessory’s trial.

A guilty plea does not automatically prove the principal’s guilt against the accessory

A common misconception is that the principal’s guilty plea conclusively establishes the underlying offense for the accessory’s case. It generally does not. The principal’s conviction or plea is the principal’s own resolution and ordinarily does not, by itself, prove against the accessory that the underlying offense occurred. At the accessory’s trial, the government still must put on evidence establishing the principal’s commission of the offense. The accessory has the right to contest that the underlying offense ever happened or that the principal committed it.

So a plea deal does not relieve the prosecution of proving the predicate offense at the accessory’s trial, …

Compelling a witness who lives overseas to testify in a court-martial is one of the more difficult procedural problems in military practice, because the tools available depend almost entirely on whether the witness is subject to the Uniform Code of Military Justice. The rules for courts-martial give parties an equal opportunity to obtain witnesses, but the reach of compulsory process is not the same for a service member as it is for a foreign national living abroad. The practical answer combines military orders, federal subpoenas, depositions, and remote testimony, with the chosen method dictated by the witness’s status and location.

The Right to Witnesses

Under the production rules, both the prosecution and the defense are entitled to the presence of witnesses whose testimony on a matter at issue would be relevant and necessary. Trial counsel bears the duty to arrange for the presence of properly requested witnesses, including those requested by the defense, unless trial counsel contends the witness is not required under the rule, in which case the dispute is resolved by the military judge. This framework applies regardless of where the witness lives, but how the government actually secures attendance varies sharply by category.

Service Members Stationed Overseas

When the witness is a service member subject to the UCMJ, even one stationed abroad, the mechanism is straightforward in concept. Military witnesses are produced through military channels by issuing orders directing them to appear. A service member can be ordered to travel from an overseas duty station to the trial location, and the failure to comply is itself a military offense. Because the witness remains within the military command structure, there is no need for a subpoena, and there is no foreign sovereignty obstacle of the kind that arises with civilians. Coordination through the chain of command and funding for travel are the main practical hurdles rather than any gap in legal authority.

Civilian Witnesses Abroad

The harder case is the civilian witness residing outside the United States. Civilian witnesses are compelled by subpoena rather than by military order. A subpoena issued under the production rules is federal process, and a civilian within the reach of that process who fails to obey a properly issued and formally served subpoena can be prosecuted in federal civilian court under Article 47, which makes such noncompliance a federal crime. This gives the subpoena real teeth for civilians who fall within United States …

Service members sometimes assume that an order delivered with shouting, profanity, or open hostility is somehow defective and therefore safe to ignore. That assumption is dangerous. Under the Uniform Code of Military Justice, the lawfulness of an order depends on its substance and the authority behind it, not on the demeanor of the person who gives it. An aggressive tone, by itself, does not make an order unlawful, and disobeying on that basis exposes the subordinate to prosecution under Article 90 or Article 92.

What actually makes an order lawful

The Manual for Courts-Martial frames the question in terms of authority and content. An order is lawful unless it is contrary to the Constitution, the laws of the United States, or lawful superior orders, or is otherwise beyond the authority of the official issuing it. The order must also relate to a military duty, which is broadly defined to include activities reasonably necessary to accomplish a military mission or to safeguard or promote the morale, discipline, and usefulness of the command.

None of those criteria mention the tone, volume, courtesy, or politeness of delivery. A calm, professionally phrased order to commit a crime is unlawful. A furious, profane order to clean a weapon is lawful. The manner of communication is legally irrelevant to the lawfulness analysis. What matters is whether the issuer had authority, whether the content fell within that authority, and whether the order connected to a military purpose.

The inference of lawfulness

Military law begins with a strong presumption favoring obedience. Orders are presumed lawful, and an order is disobeyed at the peril of the subordinate. The burden rests on the member who refuses to show that the order fell outside the narrow grounds that strip it of lawfulness. That inference does not apply to a patently illegal order, such as one directing the commission of a crime, but a harsh tone is not within that exception.

Because the presumption is strong, a subordinate who declines to obey because the officer was yelling has not identified any recognized basis for unlawfulness. The proper response to an order believed to be lawful is to comply, and to raise concerns about the officer’s conduct afterward through the chain of command, an inspector general complaint, or other appropriate channels, rather than through unilateral refusal.

When tone might matter at the margins

Although tone does not determine lawfulness, the manner of delivery …

Character letters are a familiar feature of court-martial practice. A squad leader, a first sergeant, or a company commander writes a page describing the accused as reliable, honest, or worth keeping in uniform, and the defense wants the panel to read it. Whether the panel ever sees that letter, and at what stage, depends on rules that change sharply between the findings phase and the sentencing phase. A letter that is inadmissible to prove innocence may be entirely proper to argue for a lighter sentence. Understanding the limitations means separating those two phases and accounting for the special pressures that come with a witness who outranks the accused.

Character evidence on the merits is tightly confined

During the findings phase, the question is guilt or innocence, and the Military Rules of Evidence (MRE) restrict character evidence. MRE 404(a) states the general rule that evidence of a person’s character is not admissible to prove that the person acted in conformity with that character on a particular occasion. The accused may offer evidence of a pertinent character trait under MRE 404(a)(2), but the trait must actually relate to the offense charged. Honesty may be pertinent in a larceny or false statement case; it has little bearing on a charge of being absent without leave.

A second limitation is the form the evidence must take. MRE 405 allows proof of character by reputation or opinion testimony. It generally does not permit proof of specific instances of good conduct on direct examination, except where character is an essential element of the charge or defense. A written character letter that recounts particular good deeds runs directly into this restriction. Even reputation or opinion content delivered in letter form raises a further problem: the letter is an out-of-court statement offered for its truth, which makes it hearsay under MRE 801 and 802 unless an exception applies. For the merits, then, the chain-of-command author ordinarily must testify in person, subject to cross-examination, rather than have a letter read to the panel.

Sentencing opens the door wider

The picture changes at sentencing. Rule for Courts-Martial (RCM) 1001 governs the presentencing proceeding and relaxes the evidentiary rules considerably. After findings of guilty, the defense may present matter in extenuation and mitigation under RCM 1001. Mitigation includes evidence of the accused’s reputation or record for good character, efficiency, fidelity, courage, and similar traits, offered to lessen the punishment or support …

A general officer who comes under investigation for fraternization does not automatically lose command. Whether that officer keeps command, is temporarily set aside from it, or is permanently relieved depends on who holds removal authority, what an investigation finds, and how Army command policy separates a provisional step from a final personnel action. Understanding that sequence matters because the consequences for a flag or general officer are measured in careers, retirement grade, and public confidence in senior leadership.

What fraternization actually prohibits at the general officer level

Fraternization is charged under Article 134 of the Uniform Code of Military Justice, the general article codified at 10 U.S.C. 934. The recognized elements require that the accused was a commissioned or warrant officer, that the officer associated on terms of military equality with one or more enlisted members in a way that the accused knew was prohibited, that the conduct violated the custom of that officer’s service, and that the conduct was prejudicial to good order and discipline or service discrediting. A general officer is held to the strictest reading of these customs because the appearance of partiality at the top of a chain of command corrodes discipline far below the officer’s immediate circle.

An investigation into fraternization, standing alone, is an allegation. It is not proof, and it is not a conviction. The threshold question of command retention turns on Army personnel and command regulations rather than on the criminal article itself.

Temporary suspension is not the same as relief

Army Regulation 600-20, the Army Command Policy, draws a sharp line between a temporary suspension from assigned duties and a final relief for cause. Any commander may temporarily suspend a subordinate from command duties while procedural safeguards run their course. That suspension is provisional. It allows the chain of command to remove a general officer from day to day authority during an inquiry without prejudging the outcome.

Final relief from command is a different action with a higher bar. Under AR 600-20, no final relief takes effect until the first general officer in the chain of command of the officer being relieved gives written approval. When a general officer is the relieving official, no further approval is required, but administrative review rules for relief reports still apply. The regulation goes further and protects the officer being investigated. Any action that purports to finally relieve an officer before the required written approval …

A general court-martial can stretch over weeks or months, and the military judge who starts a case is not always the one who finishes it. Reassignment, a permanent change of station, illness, disqualification, or other circumstances can require that a new military judge be detailed mid-trial. When that happens, the proceeding does not simply void. The Rules for Courts-Martial provide a structured process for replacing a military judge and bringing the replacement up to speed, and the accused has specific options to protect the fairness of the trial. The right response depends on when in the proceeding the change occurs and on what the new judge will need to decide.

The governing rules

Two rules frame the analysis. The detailing and changing of a military judge is addressed by Rule for Courts-Martial 505, which provides for changes of the military judge, and the consequences of a replacement during trial are addressed by Rule for Courts-Martial 805, which governs the presence of the military judge, members, and counsel, and the effect of a replacement. Together they establish that a military judge may be changed, that the change must follow proper procedures, and that when a new judge takes over after proceedings have begun, steps must be taken so the new judge can fairly perform the remaining judicial functions.

Familiarizing the new judge with the record

The central mechanism is familiarization with the existing record. A general court-martial is recorded, and the new military judge can review the verbatim record of what has already occurred, the prior rulings, the evidence admitted, the testimony taken, and the procedural posture of the case. For purely legal questions and for matters that do not depend on having personally observed a witness, a new judge who has reviewed the record can ordinarily continue the trial. This is why a mid-trial change of judge does not automatically restart the proceeding from the beginning.

The picture is different where the judge’s prior role required firsthand observation. If the departed judge made findings that turned on assessing the credibility or demeanor of a witness the new judge never saw, the new judge cannot simply adopt those impressions from a cold record. In that situation the parties and the new judge must consider whether the affected testimony needs to be reconsidered or whether portions of the proceeding need to be repeated so the decisions rest on the new judge’s own …